#### Fannie Martin, Resp’t, *v.*The Equitable Accident Association of Binghamton, N. Y., App’lt.

*(Supreme Court, General Term, Fourth Department,*

*Filed February 15, 1890.)*

Benefit societies—Amount bealizable fbom assessment should be. shown.

A recovery upon a certificate of membership providing for payment in case of death of an amount not exceeding a certain sum, to be realized by assessment upon the members, cannot be sustained in the absence of proof of the amount which would have been realized upon such an assessment* or that any amount would have been realized.

This action was founded on a certificate of membership, issued by the defendant, which was in the nature of a policy of insurance against accident. It was issued to John H. Martin, and provided that in case of his death the defendant should pay the plaintiff the principal sum, not exceeding $1,000, realized upon an assessment made in accordance with the provisions of § 1 of art. 4 of the defendant’s by-laws, which provides that the defendant shall pay the person named in the application “the amount collected from all the members of the association at the time of accident, upon an assessment of one dollar upon each half-rate member, and in addition, in case of a full-rate certificate, two dollars, and of a half-rate certificate, one dollar, upon each full-rate member.”

On the trial no proof was given showing or tending to show what amount would have been realized if the defendant had made the assessment provided for by its certificate. Indeed, there was neither allegation nor proof that any sum whatever would have been realized from an assessment by the defendant according to the provisions of its policy. At the close of the evidence the defendant moved for a non-suit on the ground that the plaintiff could not maintain this form of action on the policy, and also on the ground that the plaintiff had not “ made out a cause of action.” This motion was denied, and the defendant excepted.

The case was then submitted to the jury, and it rendered a verdict for the plaintiff for $1,044.66. A motion was thereupon made by the defendant, on the minutes of the trial judge, to set aside the verdict and for a new trial upon the exceptions, and *422because the verdict was contrary to the evidence and contrary to law. This motion was also denied.

The defendant appeals from the judgment entered on such verdict, and also from the order denying the defendant’s motion for a new trial.

*David Murray,*for app’lt; Mead, *Stranahan &*Spencer, for resp’t.

Martin, J.

The only'question we deem it necessary to consider is, whether the recovery in this action can be upheld when there was neither allegation nor proof that the plaintiff sustained any damage because of the defendant’s failure to perform its contract. The defendant’s contract was that it would pay the amount realized from an assessment of its members, not exceeding $1,000. Thus the measure of the defendant’s liability was the sum which would have been realized from such an assessment, if made, unless it exceeded such limitation. With no allegation or proof of the amount which would have been realized "upon such an assessment, or that any amount would have been realized, it is difficult to see how the verdict in this case can be sustained. While it has been held in a number of cases that an action at law can be maintained upon such a contract, still the same cases are to the effect that in such an action, before the plaintiff can recover, he must prove facts sufficient to enable the jury to compute the amount due thereon. *O'Brien*v. *Home Ben. Soc'y of N.*Y., 21 N. Y. State Rep., 640; aff’d 27 id., 326; S. C., 11 id., 810; *Freeman*v. *National Ben.*Soc'y, 42 Hun, 253; 5 N. Y. State Rep., 82; *Fulmer*v. *Union Mut. Ass'n,*12 N. Y. State Rep., 347; *Hankinson*v. *Page,*12 Civ. Pro., 299; *Peck*v. *Equitable Accident Ass’n of Binghamton, N. Y.,*52 Hun, 255; 23 N. Y. State Rep., 465; *Fitzgerald*v. *Equitable R. F. L. Ass'n,*24 N. Y. State Rep., 494; *Darrow*v. *The Family Fund Society,*27 id., 476. As there was no such proof in this case, we think the verdict was not sustained by the evidence, and that the court erred in denying the defendant’s motion for a new trial.

Judgment and order reversed on the exceptions and a new trial granted, with costs to abide the event

Mekwín, J., concurs.

Hardin, P. J.

It is suggested that the ground upon which the opinion of Martin, J., proceeds for a reversal was not sufficiently taken at the trial. There was no allegation in the complaint of the amount which would have been realized upon an assessment, or that an assessment would have yielded any amount. There was no proof given upon that subject by the plaintiff. In the fifth answer of the defendant it was stated: “ That the plaintiff has no right to have or maintain this action.” At the close of the evidence, in stating the grounds for a motion for a nonsuit, the defendant took the position, viz.: “ That in this action from the proofs presented there can be no recovery; ” also the further position.that “ the plaintiff cannot maintain this form of action upon the policy.” In response to the last ground, the court inquired: “ Is there any such question raised by your pleadings ? ” and the *423counsel for the defendant replied affirmatively, and referred to the fifth answer. The court made an observation to the effect that he was of the opinion that the answer was inadequate, and thereupon ruled and decided, viz.: “I will not nonsuit on that ground.” Thereafter counsel for the defendant stated, viz.: “I wish to make a general motion on the ground that the plaintiff has not made out a cause of action.” The motion was denied, and the defendant excepted. In delivering the charge to the jury, the court observed : “ The amount of your verdict, if for the plaintiff, will be 81,044.66.” Doubtless an exception would have been taken to that branch of the charge if the court had not, when the motion for a nonsuit was under consideration, made the rulings which have been quoted. Upon the record as made up it seems the attention of the court was called to the question, and apparently was understood by the court, and its ruling made in the face of the objection taken in the double language used by the appellant, first: “ That the plaintiff cannot maintain this form of action on the policy,” and, secondly: “ That the plaintiff has not made out a cause of action.”

In *Freeman*v. *The National Benefit*Society, 42 Hun, 253; 5 N. Y. State Rep., 82, proof was given that an assessment upon the members liable to contribute to the death fund “ would have produced a fund sufficient to pay the plaintiff’s claim; ” no such, proof was given in this case. The stipulation in the policy in. this case was to pay to the plaintiff “ the principal sum not exceeding $1,000 realized upon an assessment in accordance with the provisions of § 1 of article 6 of its by-laws as printed on the back of the certificate.”

In § 1, of article 6, the provision was that the association shall pay “ The amount collected from all of the members of the association at the time of accident upon an assessment of one dollar upon each half rate member, and in addition, in case of full rate certificate, two dollars, and of a half rate certificate, one dollar upon each full rate member, however, not to exceed the amount named in the deceased member’s certificate, which payment shall also be subject to diminution to the extent of the weekly indemnities paid to such member within six months preceding such death.”

In *O'Brien*v. *Home Benefit Society of New*York, 11 N. Y. State Rep., 814, in the opinion, Landon, J., says, viz.: “ In the present case the agreement is that 1 all of the amount realized from one assessment, not exceeding $2,000 ’ is payable. To recover in an action at law it must be necessary to show what is the amount realized from one assessment. It may be more or less than $2,000. In the absence'of evidence there can be no presumption that it will equal $2,000, for that sum is specified as the greatest sum payable, thus clearly implying that it may be less.”

A recovery in *Peck*against this defendant was upheld, 52 Hun, 256; 23 N. Y. State Rep., 465, but in that case it was found by the trial court “ that if an assessment had been levied as provided by such policy it would have produced at least $5,000, and the plaintiff is entitled to that sum with interest and costs.” There *424was no proof given in the case now before us that an assessment would have yielded “ $1,044.66,” or any other sum. If it could be successfully maintained as has been suggested that the plaintiff was entitled to recover at least nominal damages, that would not furnish an answer to the rulings made, nor justify a refusal of the trial judge to refuse the motion for a new trial made upon the minutes on the ground that the verdict was against evidence, as the verdict was for $1,044.66.

The foregoing views lead me to concur in the opinion of Martin, J., favoring a reversal.